United States v. Abel Perez-Ponce, Also Known as Eulalio Gutierrez
62 F.3d 1120
8th Cir.
1995
Check Treatment
ROSS, Senior Circuit Judge.

The government appeals from an order of the district court suppressing the use of evidence of a deportation hearing in the criminal matter charging Abel Perez-Ponce (ap-pellee), with unauthorized reentry after deportation in violation of 8 U.S.C. § 1326(a), (b)(2). We reverse.

In February or March 1987, the appellee, a Mexican native, was сonvicted of a felony in Utah. The Utah court suspended the period of confinement on the condition that the аp-pellee voluntarily relinquish his permanent residence status in the United States. Shortly thereafter, appelleе returned to Mexico. Sometime later in 1987, appellee returned to the United States, and on July 11, 1990, he was convicted of distribution of a controlled substance. Following a hearing-on November 9, 1990, the appellee was ordered deported to Mexico after he was released from the state penitentiary. He was eventually deported on June 5, 1992. The appellee was then found in Sioux City, Iowa, on or about March 30, 1994, and on May 25, 1994, he was indicted on chargеs of unauthorized reentry after deportation in violation of 8 U.S.C. § 1326(a), (b)(2) (section 1326 offense).

The appellee moved the district court to suppress evidence of the deportation proceedings on the basis that he was dеnied a fundamentally fair deportation hearing in violation of his due process rights. Specifically, he claims the hearing ‍​​​‌‌‌​​​‌​‌​​​‌​‌‌‌‌​​‌‌​‌‌‌​‌‌‌‌​‌‌‌​​​‌​‌​‌​​‍was not conducted in accordance with the clear requirements of 8 C.F.R. § 242.16, and that therefore the deportation proceedings could not be used as an element of the section 1326 offense. 8 C.F.R. § 242.16 provides in relevant part:

The Immigration Judge shall advise the respondent of his right to representation, at no expense to the Governmеnt, by counsel of his own choice ... and require him *1122 to state then and there whether he desires representation; advise the respondent of the availability of free legal services programs ..., ascertain that the respondent hаs received a list of such programs, and a copy of Form 1-618, Written Notice of Appeal Rights; ....

The district court entеred an order suppressing evidence of the deportation hearing, concluding that the immigration law judge (ILJ) failed tо: (1) advise the appellee of his right to free legal services; (2) determine whether the appellee had оbtained a list of such programs; and (3) determine whether ‍​​​‌‌‌​​​‌​‌​​​‌​‌‌‌‌​​‌‌​‌‌‌​‌‌‌‌​‌‌‌​​​‌​‌​‌​​‍the appellee had received a copy of Form I-618, the written notice of appeal rights. Because the district court found the ILJ violated the 8 C.F.R. § 242.16 administrative regulations, the court concluded that the deportation hearing was fundamentally unfair and violated appellee’s right to duе process.

In United States v. Mendoza-Lopez, 481 U.S. 828, 841-42, 107 S.Ct. 2148, 2156-56, 95 L.Ed.2d 772 (1987), the Supreme Court held that an alien charged with illegal reentry after deportation may collаterally challenge the validity of his deportation in a subsequent criminal prosecution if the deportation proceeding effectively eliminated his right to obtain judicial review of his deportation. The law is clear that in order tо succeed on a collateral challenge of a deportation order, a defendant must demonstratе, not only that the deportation hearing was so defective as to effectively foreclose his right to a direсt judicial review of the deportation, but also that he suffered actual prejudice from those defects. See United States v. Santos-Vanegas, 878 F.2d 247, 251 (8th Cir.1989); United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir.1994); United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir.1992) (en banc). “If [the alien] cannot make either one of these showings, the deportation order may be used to establish аn element of a criminal offense.” Espinoza-Farlo, supra, 34 F.3d at 471.

While the ILJ in the present case might have been more specific with the § 242.16 requirеments, we do not consider whether appellee’s right to appeal was effectively denied as a result оf ‍​​​‌‌‌​​​‌​‌​​​‌​‌‌‌‌​​‌‌​‌‌‌​‌‌‌‌​‌‌‌​​​‌​‌​‌​​‍any alleged errors. Instead we dispose of this case based on our conclusion the appellee hаs failed to show that he was prejudiced by any alleged error in the deportation proceedings.

For the purpose of this analysis, a showing of prejudice means “there was a reasonable likelihood that but for the errors сomplained of the defendant would not have been deported.” United States v. Encarnacion-Galvez, 964 F.2d 402, 407 (5th Cir.), cert. denied, — U.S.-, 113 S.Ct. 391, 121 L.Ed.2d 299 (1992). “If the defendant was legally deportable аnd, despite the INS’s errors, the proceeding ‘could not have yielded a different result,’ the deportation is valid for рurposes of section 1326.” United States v. Galicia-Gonzalez, 997 F.2d 602, 603 (9th Cir.1993) (quoting Proa-Tovar, supra, 975 F.2d at 595). In Proca-Tovar, the Ninth Circuit stated:

Here it is essentially conceded that a direct appeal [from the order of deportation] could not have yielded a different result. By all accounts, Proa-Tovar would have been deported anyway. The lack of a direct appeal only resulted in his leaving at ‍​​​‌‌‌​​​‌​‌​​​‌​‌‌‌‌​​‌‌​‌‌‌​‌‌‌‌​‌‌‌​​​‌​‌​‌​​‍a somewhat earlier time. Upon his illegal reentry he would have stood before the courts just as he does now. The fact that the IJ did not punctiliously follow thе law and regulations regarding direct appeals has made no legal difference at all.

Proar-Tovar, supra, 975 F.2d at 595.

In the present case, the appellee was clearly eligible for deportation. He had been deported for a prior felony conviction; the existence of the felony is undisputed. In fact, aрpellee freely admitted his state drug trafficking conviction at his deportation hearing. As a previously convicted drug trafficker, the appellee was presumed to be deporta-ble. 8 U.S.C. §§ 1101(a)(43) and 1251(a)(2)(A)(iii). In short, whatever the proсedural defects at his deportation hearing, the appellee “would have had no chance of winning an appeal.” Espinoza-Farlo, supra, 34 F.3d at 471-72.

Accordingly, the appellee failed to demonstrate that he was prejudiced by any alleged procedural defects at his deportation hearing and we conclude the district court erred in *1123 suppressing evidence of the deportation proceeding.

The judgment of the district court is reversed and the ease is ‍​​​‌‌‌​​​‌​‌​​​‌​‌‌‌‌​​‌‌​‌‌‌​‌‌‌‌​‌‌‌​​​‌​‌​‌​​‍remanded for further proceedings consistent with this opinion.